Hughes Tolling Rule for Texas Legal Malpractice Actions

A tolling rule requires that some other rule does not apply for a period of time. Tollin can result from a statute, a case, or from equity. This sort of rule arises most often in statutory of limitations cases–at least in Texas.  

The “Hughes Rule” in Texas tolls the statute of limitations of two years in legal malpractice cases when the act(s) allegedly giving rise to the malpractice case occur in or “microscopically” close to litigation, and the “toll” lasts until the litigation is completely over, i.e., when appeal(s) are “finally concluded.” This tolling rule does not apply to alleged malpractice arising out of activities or omissions which do not occur in litigation, e.g., “mere transactional work.” For that kind of malpractice case, the statute of limitations begins when the cause of action for legal malpractice accrues and that is when the action or omission which is malpractice occurs, or maybe very shortly thereafter, except, under some circumstances when the act or omission is first discovered much later, or when it should have been discovered. Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991). See Apex Towing Col v. Tolin, 41 S.W.3d 119, 123 (Tex. 2001).

This case, Brian Erikson and Quilling, Selander, Lownds, Winslett & Moser, P.C.,v. Renda [collectively, Erickson], 18-0486 (Tex. December 20, 2019) has a very complicated scenario involving two litigation processes, multiple corporate entities, a key business individual, suits between vendors of service, an individual, and the United States government, all pertaining to work on a ship channel, as well as federal statutes. There is a string of related lower court decisions. The accused lawyer was involved in both the relevant litigation and transactional events. Many millions of dollars were at stake. This suit was actually the second legal malpractice against Erickson arising out of the underlying morass (or should it be, “morasses”). 

The actual story is extra-ordinally complex. Reading the whole case is not for the faint-hearted and is only for those who love cases with twists and turns. Even reading a more detailed summary of the Court’s Opinion will feel oppressive. On the other hand, this case contains a helpful history of the Hughes rule and provides a list of decided cases in which that rule has been applied. (The ruling of this Court was a reversal of a decision of a Court of Appeals. This fact makes no difference to a study of the Opinion.) 

The upshot is that the Hughes tolling rule does not apply to advise and business transaction-type legal services unless they are “integrally connected to the prosecution of defense of a claim.” Merely being about a litigated matter, even if close in time to it,  and having some impact on the litigation, is insufficient to trigger the Hughes tolling rule. 

This case was decided below on summary judgment. Assuming that integrally connectedness is a matter of fact, this would a hell of a case to try to a jury of the laity. At least there is a string of shenanigans that many audiences might find amusing, though distressing.